New ACTA leak shows major resistance to US-style DRM rules

The leaks keep coming for the Anti-Counterfeiting Trade Agreement (ACTA). A new leak from Europe has revealed the inner workings of the negotiating process through a 40+ page document showing each country's positions on key provisions of the treaty.

While most of the negotiating is quite technical, what stands out most sharply is the international resistance to the US-drafted proposals on DRM "anticircumvention" rules. Let's take a look at some of the key differences among parties.

Hey, isn't this an IP treaty?

As part of a fairly technical discussion on ISP liability for copyright infringement, the US laid out its main reason for supporting "safe harbors" for Internet companies: "in order to facilitate the continued development of an industry engaging in providing information services online."

New Zealand expressed displeasure, noting that the point of ACTA was not to boost the "information services online" industry. The statement "appears to go beyond the general aim of ACTA to provide a framework for the enforcement of intellectual property rights," said the New Zealand delegation, even though it supports the safe harbor principle.

New Zealand also objected to a US proposal that would provide a safe harbor when infringement occurs by "referring or linking users to an online location." New Zealand's question is a simple one: how can a hyperlink violate copyright?

"We understand this provision covers information location tools such as search engines," said the delegation. "It is not clear how the provision or use of information location tools breaches copyright, or why third party liability should arise for the provision of such tools. We would welcome further explanation on the need to provide such a safe harbour."

This, of course, has been the main argument of most BitTorrent search engines ("We don't host any material, just links—like Google!"), but that hasn't prevented numerous lawsuits against such sites.

Changing the laws

The US is pursuing the ACTA negotiations as an "executive agreement" rather than a full-on treaty; this avoids the need for Congressional ratification but also means that ACTA cannot alter US law. This means a strong US push to export the Digital Millennium Copyright Act (DMCA) to the rest of the world—and of course many countries will need to alter their own laws to make this happen.

This is made explicit by Japan, which mentions several times that the proposed text is at odds with Japanese law. Japan is therefore "examining" how to adjust ACTA "to Japanese legislation or vice versa."

The European Union also notes at various points that the US proposals are "not consistent with the EU legislation," though Europe doesn't show much interest in rewriting its own laws—"Important. No flexibility" is scattered throughout the negotiators' notes.

About those WIPO treaties...

How did the US end up with the DMCA's "anticircumvention of DRM" principle, anyway? It wasn't an idea pushed only during US lawmaking; it actually came from the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty.

The DMCA implemented the WIPO Copyright Treaty, though it went farther than WIPO ever did in some respects—and rightsholders have been attempting to convince the world ever since that the WIPO Copyright Treaty says more than it does (the WIPO Performances and Phonograms Treaty, also passed in 1996, is almost identical on the question of DRM).

The WIPO Copyright Treaty says of DRM that "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

Note that "adequate" and "effective" are purposely undefined in the treaty to allow flexibility in implementation; note also that legal remedies must only be provided in cases where DRM "restricts acts... which are not... permitted by law." If DRM restricts activities that would otherwise be legal—say, format-shifting a DVD to your iPod in the US—countries are not required to provide any anticircumvention protection.

And yet, when the US proposed broad, DMCA-style anticircumvention language in ACTA, it opened by saying that this was done in order to implement the two WIPO treaties. No one else is buying this, though, and the EU, Japan, and Canada all asked for the WIPO section to be struck out.

Japan went so far as to raise a lengthy question about this, pointing out that "the WIPO treaties do not require the Parties to implement the restriction of circumvention on access control. Thus, making reference to the WIPO treaties is inappropriate."

In addition, Japanese law has many fewer such restrictions, and Japan would "like to know from the US or other countries which adopt a restriction on circumvention of access control" just how much harm is caused by bypassing DRM and how effective the anticircumvention provisions have actually been.

ISP monitoring: definitely out

Though there are disagreements about where to put the language, all the countries involve recognize that requiring ISPs to monitor their networks for copyright infringement, and conditioning safe harbors on such monitoring, is a Bad Idea. Which is a Good Idea.

Given the rumors that the US-drafted Internet section of ACTA might well mandate such filtering, it looks the Internet has dodged a collective bullet.

So much secrecy

The leak is a fascinating peek inside a process that must be, most of the time, insanely boring. If you think ACTA is all about plotting world domination, give the negotiating notes a read; much of the time is spent hashing out individual words and phrases, trying to meld various legal systems, and talking about the "three-step test."

The real mystery here is why some governments are pushing so hard to keep the various proposals and counterproposals secret; some ideas are hugely controversial, but nothing appears to be "secret" in the way that missile deployment numbers, for instance, might be secret.

But thanks largely to Europeans, the ACTA leaks keep on dripping. An earlier leak last week even told us which countries were dragging their heels on transparency: Belgium, Germany, Denmark, Portugal, South Korea, and Singapore. As for the US, it refuses to take a position, and is certainly not pushing for more disclosure.

We checked in with the US Trade Representative official handling the negotiations to ask why the US, despite its repeated public commitments to transparency, would not even take a position. There was no answer.

How are missile deployment numbers classified information?I once attended a classified brief about how an enemy submarine was tracked (during peacetime) from where to where, the time it occurred, and with what US assets. It wasn't current information, it was from around 3 years ago (at the time I received the brief). It was certainly an interesting presentation, but I have no idea how an adversary would use the information presented.

So basically the US is the spoiled rotten brat who tries to make all the other kids do what he wants and happily ignores anything they say, even though they have pretty much figured out by now that the US really isn't so nice to hang out with and are hinting at just walking away.

So basically the US is the spoiled rotten brat who tries to make all the other kids do what he wants and happily ignores anything they say, even though they have pretty much figured out by now that the US really isn't so nice to hang out with and are hinting at just walking away.

But thanks largely to Europeans, the ACTA leaks keep on dripping. An earlier leak last week even told us which countries were dragging their heels on transparency: Belgium, Germany, Denmark, Portugal, South Korea, and Singapore.

I find it depressing to see us listed here, but somehow, it doesn't surprise me. Officially, Denmark is a proponent of transparent governing; in reality, the central administration still hasn't quite grasped that we abolished absolutism in 1849.

So basically the US is the spoiled rotten brat who tries to make all the other kids do what he wants and happily ignores anything they say, even though they have pretty much figured out by now that the US really isn't so nice to hang out with and are hinting at just walking away.

Delicious.

In an indirect way, yes, U.S. citizens are responsible for this, since we bought a bunch of crap that made these companies rich enough to pursue this agenda on a global scale. We are the frog sitting in the boiling water, licking our lips as we purchase frog stew from the business man who's scooping it up out of the pot we're boiling in and selling it to us for a butt-load of money.

I once attended a classified brief about how an enemy submarine was tracked (during peacetime) from where to where, the time it occurred, and with what US assets. It wasn't current information, it was from around 3 years ago (at the time I received the brief). It was certainly an interesting presentation, but I have no idea how an adversary would use the information presented.

Seriously? Knowing how you have been tracked in the past is exactly the kind of information the enemy wants. For example: If you know what assets you are tracked with you can make assumptions based on their known (or unknown) positions of your current likelihood of being tracked. Its basically like revealing your standard battle plans to the enemy so they know how to prepare for them, not the best of ideas.

Wait, people don't unanimously agree with the US? You mean, we might be wrong, bowing to corporate greed and influence when it comes to IP laws? No way!

Glad to see other countries [appear to] have some common sense and maybe a little actual representation of their constituents.

US corporations have little else left peddle. The Asians and Europeans are making the best products to the point that American companies are subcontracting most manufacturing (and sometimes even development) to them. All US companies are left with is a shit load of IP that they have to milk better. So once appropriate laws are enacted and enforced internationally, they can raise prices on IP, and sue, sue, and sue again. It's a great time to become a lawyer. I am sure American lawyers will be in high demand in the next couple of decades.

US corporations have little else left peddle. The Asians and Europeans are making the best products to the point that American companies are subcontracting most manufacturing (and sometimes even development) to them. All US companies are left with is a shit load of IP that they have to milk better. So once appropriate laws are enacted and enforced internationally, they can raise prices on IP, and sue, sue, and sue again. It's a great time to become a lawyer. I am sure American lawyers will be in high demand in the next couple of decades.

Rather, it's a matter of labor. Labor is extremely expensive in the US and other well-developed countries. As a result, we can't compete in manufacturing of simple products (those mainly involving human labor) with those countries with cheap labor. As a result we base our economy on what we have that others don't, either because we're more advanced or because they're prohibited from manufacturing due to IP laws.

But this is only gonna last another couple decades. By that time China and India will be just as technologically advanced as the US (and friends), but they'll be 8x as large. At that time they're gonna be producing 8x as much IP as the US, meaning an 8:1 trade deficit on IP alone (and even worse in labor products). I seriously wonder if that's when the US and other old IP-based countries will collapse.

Well, for better or for worse, the corporations gave what people desire (apparently) the most - cheap consumer goods. Of course, this masked the fact that real wages for the middle class have gone down while the corporate leadership continued to loot the organisations they led.

As I see it, the West should invest in ACTA, because it is going to ensure you have some barriers of entry into the last bastion of goods and services - i.e. Intellectual Property - that remain unaffected by the wholesale relocation of manufacturing industries to China and Asia-at-large.

Of course, the Chinese are going to ignore it. Simply because the best way for them is to copy your designs, refine them and undercut you. Just like what the Japanese did.

Of course, the Chinese are going to ignore it. Simply because the best way for them is to copy your designs, refine them and undercut you. Just like what the Japanese did.

Uh.. have you any understanding of were the Japanese is now? They still have not recovered from their massive inflation combined with massive depression they went through in the 90's.

Europe, meanwhile, is in a happy and steady decline themselves. Sure a slow decline is not that bad... Low growth and decaying economic base is not unpleasant for people at the least. Especially when they do not have to worry with the government always making promises to bail everybody out and protect them. When you have a slow decline you can still enjoy all the frills and benefits from having a modern infrastructure.... it is already built and developed and all you have to do is maintain it and your fine. '

But give them 20 years and they'll start hurting. Mark my words.

China is doing fine right now... The wealthier they are the better off we are. It does not really matter that they own our debt or anything like that. It just means that they have a vested interest in our well being because if we go down they will crumble economically very quickly.

The trouble is that they are pretty much in the process of destroying their country. Similar to Michigan in the 1960-1970's except on a much more massive scale. Completely off the charts in terms of environmental destruction. Plus it is going to suck for the Chinese government once a powerful middle class develops and they realize that they don't have to put up with the communist bullshit anymore.

The biggest problem we have in the USA now is that the we have massive interlocking corporate directorships. That the same people that own many major corporations, control almost all the media outlets in the country and are friends and family with most folks elected in Congress.

It is not so much that they have the Congress in their back pocket through 'special interests' and lobbyists... its more that the people that run the government and the people that run these corporations are the same sort of people. They play golf together, they party together, they hire each other when they lose their office. So on and so forth.

You see the USA economic structure has always been very distributed. Even though the large publicly held corporations control a bulk of the capitol in the country it is small and medium businesses that do the bulk of the economic activity and hire the bulk of the population. This gives our country very strong resilience against economic downturns,

These smaller and more independent corporations have been able to keep things going _DESPITE_ the federal banking system and government regulations, not because of it. All the bail-outs is not to prop up our economy or get us out of this recession.. its Congress just trying to bail out corporations that they have interest in, combined with keeping the unions happy.

If companies like GM go bankrupt then that gives them the opportunity to break their agreements with the Unions. Then they can go and renegotiate and get the same high-quailty USA labor that companies like Toyota enjoy using. And don't think that it is a accident that Toyota is getting all this bad press.. at all. GM has had their own recalls and problems, but Toyota is not owned by our government. The latest GM recall is a steering problem in a massive number of their cars.

But right now it seems like our big brother government is having a good time killing of any and all incentives to start businesses and become successful. If there is not point in working 70 hours a week to become successful and be able to buy a nice house and nice car... then people won't do it.

They won't start businesses. They won't hire people. They won't do anything. If as soon as you achieve something and become wealthy the government comes and takes it all away from you then there is absolutely no point in trying in the first place.

-------------------------------

As far as ACTA goes...

The media in this country is controlled by a few major companies. The folks that own the music studios , own the movie studios, run the news agencies, own the television stations, etc etc etc.

They have a huge amount of political power and are not hesitant to try to use it to get what they want.

ACTA is just a reflection of this. Its like "Hey, thanks for help getting me elected. Here is your reward".

I think its funny that its other countries that are keeping the US "Free". Putting the lie to that "Land of The Free" garbage. Given half the chance, the politicians would sell us for their 30 pieces of silver.